Leave to File Petition for Rehearing Denied Jan. 12, 1976.
See 423 U.S. 1067.
On petition for writs of certiorari to the United States Court
of Appeals for the Seventh Circuit.
The petitions for writs of certiorari are denied.
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr.
Justice MARSHALL join, dissenting.
Rule 26(b) of the Federal Rules of Appellate Procedure
authorizes the courts of appeals to permit motions to be made
out-of-time only 'for good cause shown.' The question in these
cases is whether the Government showed good cause for its untimely
motion to extend time to petition for rehearing in the Court of
Appeals.
Petitioners Shumar and Clarke were convicted in the District
Court for the Southern District of Indiana on one count of
conspiring to violate 18 U.S.C. 1955 and on two counts of actually
violating 1955. The Court of Appeals for the Seventh Circuit
affirmed the convictions on the substantive counts, but reversed on
the conspiracy count, holding that Wharton's Rule barred conviction
for both violating and conspiring to violate 1955. The Court of
Appeals entered judgment on July 31, 1974, and denied petitioners'
petition for rehearing on September 30. The Government moved on
October 4 to stay the mandate pending our decision in Iannelli v.
United States,
420
U.S. 770 ( 1975), a case which presented the identical
Wharton's Rule question decided by the Court of Appeals. The
Government did not seek an extension of time to petition for
Page 423 U.S.
879 , 880
rehearing until October 24, when it sought an extension pending
our decision in Iannelli. The Court of Appeals granted the
extension. Several months later, we held in Iannelli that Wharton's
Rule does not bar conviction for both violation of 1955 and
conspiracy to do so. The Government then petitioned for rehearing.
The Court of Appeals granted rehearing and modified its decision in
light of Iannelli, affirming petitioners' convictions on the
conspiracy count.
Absent an extension of time or a new entry of judgment, time to
petition for rehearing expired on August 14, 14 days after entry of
judgment by the Court of Appeals on July 31. Fed.Rule App.Proc.
40(a). The Government contends, however, that its time to petition
for rehearing began to run from the denial of petitioners' petition
for rehearing on September 30. But even accepting this doubtful
contention,1 time to petition for rehearing expired on October 14,
and, as the Government concedes, its motion to extend time on
October 24 was untimely.
The Government argues instead that it satisfied the good cause
requirement of Rule 26(b) by pointing out that we had granted
certiorari in Iannelli on the same Wharton's Rule question decided
by the Court of Appeals. Admittedly, our grant of certiorari in
Iannelli would have been good cause to grant a timely motion to
extend time to petition for rehearing, but that is not the question
presented by these cases.
The Government's motion to extend time was itself untimely. Its
burden was to show good cause, not only for the extension, but also
for its untimely motion
Page 423 U.S.
879 , 881
for an extension. Rule 26(b) requires a showing of good cause
both for extensions of time and for motions made out-of-time:
'The court for good cause shown may
upon motion enlarge the time prescribed by these rules or by its
order for doing any act, or may permit an act to be done after the
expiration of such time . . ..' Fed.Rule App.Proc. 26(b) (emphasis
added).
Indeed, of the three earlier rules upon which Rule 26(b) was
modeled, see Fed.Rule App.Proc. 26(b), Notes of Advisory Committee,
two permit motions to extend time outside of the period sought to
be extended only upon a showing of excusable neglect, Fed.Rule
Civ.Proc. 6(b); Fed.Rule Crim.Proc. 45(b), and one permits
applications to extend time only within the period sought to be
extended, Sup.Ct.Rule 34(2).2 The Government was required to show
good cause for its delay in seeking an extension. [
Footnote 3]
It failed to do so. Certiorari was granted in Iannelli on May
28, 1974. The Court of Appeals forst entered judgment over two
months later and, according to the Government, its time to seek an
extension expired over four months later. The Government does not
contend
Page 423 U.S.
879 , 882
that its time to move for an extension expired before it had a
reasonable opportunity to learn of our grant of certiorari in
Iannelli, and indeed, it could not make this argument. When the
Government moved on October 4 to stay the mandate of the Court of
Appeals pending our decision in Iannelli, it was aware that
certiorari had been granted in Iannelli. Assuming, as the
Government contends, that it could have timely moved to extend time
on October 4, its 20-day delay until October 24 must be attributed
solely to inadvertence. If the good cause requirement of Rule 26(b)
possesses any meaning at all, the inadvertence of a litigant cannot
qualify as good cause.
I would grant certiorari to reverse the affirmance of
petitioners' conspiracy convictions by the Court of Appeals.
Footnotes
Footnote 1 Petitioners, of
course, only sought rehearing on the affirmance of the substantive
counts of their convictions. The Government fails to explain how
the denial of rehearing on the affirmance of these counts extended
its time to petition for rehearing on the reversal of the
conspiracy count. The Government's claim is far from obvious. Under
Fed. Rule App.Proc. 40(a), time to petition for rehearing runs from
the date of entry of judgment. It is doubtful that entry of a
denial of rehearing operates as an entry of judgment within the
meaning of Rule 40(a), since that would permit an indefinite
succession of petitions for rehearing. It is still more doubtful
that entry of a denial of rehearing as to the affirmance of two
counts of a conviction constitutes entry of judgment of reversal as
to a third count.
Footnote 2 Since the
promulgation of the Federal Rules of Appellate Procedure, the
relevant provisions of the cited rules have not been changed.
Footnote 3 The decisions in
Huddleston v. Dwyer,
322 U.S. 232 (1944), and
Braniff Airways, Inc. v. Curtiss-Wright Corp.,
424 F.2d
427, 428-430 (CA2 1970), cert. denied, 400 U.S. 829 (1970), are
not to the contrary. The party seeking rehearing in those cases had
good cause for its delay in seeking an extension. Unlike the
present cases, there was no evidence that the party was aware, or
could readily have become aware, prior to the expiration of time to
petition for rehearing, that a case pending in state supreme court
might conclusively establish the governing state law.
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